For too long, the U.S. Department of Veterans Affairs (VA) has circumvented a policy known as VETS First, refusing to give preference to veteran-owned small businesses despite being directed to by Congress, the Government Accountability Office (GAO) and the U.S. Supreme Court.

This refusal hurts not only veteran-owned small businesses, but the millions of veterans who depend on the VA.

In 2006, Congress passed The Veterans Benefits, Health Care and Information Technology Act, which among other things established the VETS First program. But the VA, under administrations controlled by both parties, never followed through. On several occasions, the GAO has ruled that the VA has failed to follow the law. And still, it does nothing.

The GAO recently denied Leidos Innovations Corporation’s protest of a determination that Leidos was ineligible to receive a $272 million award by the U.S. Army despite Leidos having both the highest-rated technical proposal and the lowest evaluated cost.

The GAO decision, which affirmed the agency’s determination that Leidos was non-responsible because one of Leidos’ subcontractors did not have the necessary base access, is an important reminder that prime contractors should thoroughly vet their subcontractors to ensure, to the extent possible, all necessary qualifications are satisfied for the associated contract.

In February 2016, Leidos was one of six contractors that responded to a request for task order execution plan (RTEP) to provide operational and sustainment logistics support for U.S. Special Operations Command’s Tactical Airborne Multi-Sensor Platform. The RTEP noted that some of the work may take place at U.S. government facilities in the U.S. Central Command (USCENTCOM) Area of Responsibility (AOR). Contractors were also on notice that they were subject to parts of the Defense Federal Acquisition Regulation Supplement, including a provision requiring contractors to comply with directives from the Combatant Commander of USCENTCOM.

On May 19, 2017, the U.S. Government Accountability Office (GAO) sustained a protest filed by Pinnacle Solutions, Inc. (Pinnacle) challenging its exclusion from the competitive range in NASA procurement for aircraft logistics, integration, configuration management, and engineering services. GAO concluded that NASA had unreasonably evaluated and assigned weaknesses to Pinnacle’s proposal and, as is relevant here, excluded Pinnacle from the competitive range based on “unreasoned distinctions[.]”

The RFP contemplated the evaluation of proposals on two non-price factors: Mission Suitability and Past Performance. The Mission Suitability factor consisted of three subfactors, Management Approach, Technical Approach, and Safety & Health Approach which were allocated point values of 700, 150, and 150 points, respectively. Per the source selection plan, the points corresponded to adjectival ratings: an Excellent was worth 91-100 percent of the points, a Very Good was worth 71-90 percent of the points, a Good was worth 51-70 percent of the points, a Fair was worth 31-50 percent of the points, and a Poor was worth 0-30 percent of the points.

To federal construction contractors, the true legwork may seem to begin only after the government has accepted a proposal and performance has begun. However, a recent Armed Services Board of Contract Appeals (ASBCA) decision reinforces that federal construction contractors’ work often should begin long before contract award.

In Zafer ConstructionCompany, ASBCA No. 56769 (2017), the ASBCA rejected a construction contractor’s allegations of unilateral mistake, unconscionability, and differing site conditions (among other claims for additional costs). The problem? The contractor did not attend a government scheduled site visit, conduct an independent site visit, review technical drawings, submit any inquiries during the proposal stage, or otherwise take reasonable steps necessary to better ascertain the nature of the work prior to submitting a multimillion dollar proposal on a complex project.

By way of background, the contract in Zafer involved the U.S. Army Corps of Engineers’ procurement of renovation work at the Afghanistan National Military Hospital in Kabul, Afghanistan. In 2004, the buildings at this site had fallen into varying states of disrepair. In preparation for issuing the solicitation, the government employed an assessment team (called the Baker team) to survey the site, assess the condition of the buildings and infrastructure, and prepare a report for the government’s use in budgeting and defining the scope of work.

It’s been more than a year since the SBA issued a final rule overhauling the limitations on subcontracting for small business contracts. The SBA’s rule, now codified at 13 C.F.R. 125.6, changes the formulas for calculating compliance with the limitations on subcontracting, and allows small businesses to take credit for work performed by similarly situated subcontractors.

But the FAR’s corresponding clauses have yet to be changed, and this has led to a lot of confusion about which rule applies – especially since many contracting officers abide by the legally-dubious proposition that “if it ain’t in the FAR, it doesn’t count.” Now, finally, there is some good news: the FAR Council is moving forward with a proposed rule to align the FAR with the SBA’s regulations.

By way of quick background, way back in January 2013, former President Obama signed the 2013 National Defense Authorization Act (NDAA) into law. The 2013 NDAA made major changes to the limitations on subcontracting. The law changed the way that compliance with the limitations on subcontracting is calculated for service and supply contracts – from formulas based on “cost of personnel” and “cost of manufacturing,” to formulas based on the amount paid by the government. And, importantly, the 2013 NDAA allowed small primes to claim performance credit for “similarly situated entities.”

In a report released on June 30, 2017, the Government Accountability Office (GAO) reaffirmed “long-standing management challenges” within the Small Business Administration’s operation of several small business contracting activities “resulting in inefficient program operations.”

The programs impacted include small businesses in the socioeconomic categories of small disadvantaged businesses (SDB), women-owned small businesses (WOSB), service disabled veteran-owned small businesses (SDVOSB), and historically underutilized business zone (HUBZone) small businesses.

For three of the small business programs, GAO specifically found:

HUBZone Program

There is no specific guidance or criteria for making requests for supporting documentation in connection with applications made as a part of the HUBZone certification process.

Because of shortcomings in the recertification process, there is not reasonable assurance that only qualified firms are allowed to continue in the HUBZone program.

Despite some automation put in place by the SBA, there is a backlog of firms in the recertification pipeline, required within a three-year time frame.

8(a) Program

There is an open issue involving the need to “clearly document [SBA’s] justification for approving or denying applicants into the 8(a) program, particularly when those decisions differed from lower-level recommendations.” The SBA’s Office of Inspector General (OIG) intends to continue to flag this issue “until this practice is documented in an SOP or desk guide for the program.”

The OIG reports that it has received documentation on thirty 8(a)-certified firms that it earlier found did not meet all of the eligibility requirements, and plans to issue an analysis of that documentation in a forthcoming report.

WOSB Program

SBA validated an earlier OIG report by agreeing that 40 percent of the WOSB concerns that the OIG questioned were not, in fact, eligible to receive contracts under the WOSB program at the time of award.

While the FY15 National Defense Authorization Act (NDAA) eliminated SBA’s self-certification process for the WOSB program, the SBA has not yet implemented a process to eliminate self-certification.

“As a result of inadequate monitoring and controls, such as not implementing a full certification program, potentially ineligible businesses may continue to incorrectly certify themselves as WOSBs, increasing the risk that they may receive contracts for which they are not eligible.”

Until a new certification program required by the FY15 NDAA is implemented, “oversight of third-party certifiers and enhancing examinations of WOSB firms are needed to help ensure that only eligible businesses participate in the WOSB program.”

Contractors would be wise to keep a close watch on FedBizOpps.gov, otherwise they run the risk missing the chance to protest a sole source award.

When an agency decides to make an award without competition, it often must publish a Justification and Approval (referred to simply as a “J&A”) on FedBizOpps explaining why a competition would not meet the agency’s needs. A potential competitor seeking to protest such an award at the GAO must file the protest before 10 days have passed from publication of the J&A, otherwise the protest may be untimely. A competitor that is not paying attention could be out of luck.

The work was originally competed, and Western Star Hospital Authority, Inc. submitted a proposal. The Army rejected Western Star’s proposal, saying that Western Star had not proposed pricing for all CLINs, as required by the solicitation.

The federal government’s ongoing efforts to hasten the processing of security clearances hit a speed bump this week, as an auditor ruled the Office of Personnel Management (OPM) unfairly awarded a contract to a company seeking to provide support services in background investigations processing.

The Government Accountability Office (GAO) decision comes shortly after OPM stood up the nascent National Background Investigations Bureau. Two companies filed a protest with GAO after OPM awarded the $117 million contract to Primus Solutions, a division of ARSC Federal. The contract was for at least two years with options of up to five, and was intended to provide OPM employees support in processing background investigations.

In its solicitation, OPM had said it would consider price to a much lesser degree that non-price factors such as technical approach, quality control plan, staffing plan and past performance. Primus came in more than $9 million below one of the companies filing the protest and more than $44 million below the other. GAO confirmed allegations that OPM’s selection authorities ignored initial concerns from its price evaluators that Primus’ cost estimates were “unrealistic.”

It’s the kind of figure that can make your jaw drop, the kind that forces lawmakers and public officials to get off their duffs and do something, that drives home the way cyber insecurity is ravaging small businesspeople across the nation.

House and Senate lawmakers have cited it in bills that would redirect federal resources and are awaiting action on their chambers’ floors. Top executive branch officials have cited it in official testimony to Congress.

But it’s completely erroneous, not based on any existing study, according to an exhaustive Nextgov search.

The statistic, typically attributed to the National Cyber Security Alliance, is that 60 percent of small businesses that suffer a cyberattack will go out of business within six months.

The exceptional nature of a contract protest case was demonstrated in a recent decision made by the Court of Federal Claims (COFC).

In the case, Starry Associates, Inc. v. United States, the COFC awarded “enhanced” attorney fees to plaintiff’s counsel due to the agency’s cancellation of the solicitation which the court characterized as “capricious” and “reflect[ing] a lack of fidelity to the procurement process.”

The contract’s cancellation resulted in multiple GAO protests, a hearing at GAO, multiple depositions of agency officials during a follow-on protest at the Court, and a decision enjoining the Dept. of Health and Human Services (HHS) from cancelling the solicitation